Law  Lib 

CompLaw 

T 

Schl48r 

1905 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

LAW  LIBRARY 


ml 


isconsm  Free  Library  Commission 
:gislative   Reference    Department 
Comparative  Legislation  Bulletin 
'-ftd  1 


RAILROAD  COEMPLOYMENT 


MARGARET  A.  SCHAFFNER 


VIADISON  V. 


e  Library  Com 


Legislative  Reference  Department 

•ome  inc; 


RAILWAY  COEMPLOYMENT 


MARGARET  A.  SCHAFFNER 


COMPARATIVE  LEGISLATION   BULLETIN— No  1— DECEMBER  1905 


\V isconsm  Free  Library   Commission 

Legislative  Reference  Department 

Madison  "Wis 

1905 


' 


CONTENTS 


REFERENCES 

JUDICIAL  DEFINITIONS 

HISTORY 

LAWS  AND  JUDICIAL  DECISIONS 

JUDICIAL  CRITICISMS 


REFERENCES 


BEVEN,  THOMAS.    The  law  of  employers'  liability  and  work- 
men's compensation.    3d  ed.  London,  1902. 
Traces  the  growth  of  the  English  law. 

CLAY,  W.  G.  Abstract  of  the  law  of  employers'  liability 
and  insurance  against  accidents  in  the  U.  S.  and  for- 
eign countries.  Journal  of  the  Society  of  comparative 
legislation,  1897,  vol.  2. 

Surveys   briefly   actual    and   proposed   legislation. 

FREUND,  ERNST.  The  police  power:  public  policy  and  con- 
stitutional rights.  Chicago,  1904. 

Sec.     633.     Absolute    liability    for    personal     injuries    under 
other   legal   systems. 

LABATT,  C.  B.  Commentaries  on  the  law  of  master  and 
servant,  vol.  1  and  2,  Employer's  liability.  Roches- 
ter, 1904. 

One  of  the  best  treatises  on  the  subject.    Cases  up  to  spring 
of  1902. 

NEW  YORK  (STATE) — LABOR  STATISTICS,  BUREAU  OF.  Indus- 
trial accidents  and  employers'  responsibility  for  their 
compensation.  (In  its  Annual  report,  1899,  vol.  17, 
p.  555-1162.) 

Gives  a  general   review   of   the  problem   of   industrial   acci- 
dents  and    employers'    liability    in   America   and    in    Europe. 

REXO,  CONRAD.  A  treatise  on  the  law  of  the  employers'  lia- 
bility acts.  2nd  ed.  Indianapolis,  1903. 

Gives  the  text  of  the  principal  American  and  English  acts 


4  RAILWAY  COEMPLOYMENT 

U.   S. — INDUSTRIAL  COMMISSION.    Duties  and  liabilities  of 
the  employer  to  the  employee.     (In  its  Reports,  1900, 
vol.  5,  p.  76-87.) 
A  brier  legal  study  for  the  U.  3. 

— —  Court  decisions  on  employers'  liability  in  railroad 
cases,  1895-1900.  (In  its  Reports,  1901,  vol.  17,  p. 
970-1135.) 

• Compensation  for  accidents.     (In  its  Reports,  1902, 

vol.  19,  p.  932-39.) 
General  observations  of  tbe  Commission. 

U.  S. — INTERSTATE  COMMERCE,  COMMITTEE  ox  (SENATE). 
Laws  of  the  states  and  territories  concerning  em- 
ployers' liability.  Wash.  May  23,  1905,  p.  108.  (Its 
Regulation  of  railway  rates,  Apx.  J.) 

A    convenient    compilation    giving    judicial    deciBions    under 
the  laws  of  tne  several   states.    Can  be  secured  free. 

lL  S. — LABOR,  BUREAU  OF.  Present  status  of  employers'  lia- 
bility in  the  U.  S.  by  Stephen  D.  Fessenden.  Bulletin, 
Nov.  1900,  No.  31,  p.  1157-1210. 

A   brief  statement   oi'  the  common  and  statute   law  on  em- 
ployers' liability  in  the  U.  S. 

U.  S. — LABOR,  DEPARTMENT  OF.  Workmen's  compensation 
acts  of  foreign  countries  by  Adna  F.  Weber.  Bulletin, 
May,  1902,  No.  40,  p.  549-51. 

(Jives  a  summary  of  the  laws  of  the  principal  foreign  coun- 
tries  in    tabular  form. 


RAILWAY  COBMPLOYMENT 


JUDICIAL   DEFINITIONS 


WHO  ARE   FELLOW-SERVANTS? 

The  question  who  are  fellow-servants  has  been 
answered  in  a  variety  of  judicial  decisions  which  pre- 
sent widely  conflicting  opinions.  No  other  Subject 
known  to  our  law  has  given  occasion  for  such  con- 
flicting rulings.  The  decisions  vary  not  only  for  dif- 
ferent jurisdictions  and  for  different  historical  periods 
but  disagree  to  an  extent  which  cannot  be  explained 
on  the  basis  of  general  principles  of  law. 

Definitions 

A  general  uniformity  of  opinion  is  found  in  the  fol- 
lowing definitions : 

New  York.  In  1862  the  supreme  court  of  New 
York  decided,  "Servants  are  'fellow-servants'  within 
the  rule  that  the  master  is  not  liable  for  the  injuries 
of  the  servant  received  through  the  negligence  of  a 
fellow-servant  if 'they  are  in  the  employment  of  the 
same  master,  engaged  in  the  same  common  enter- 
prise, and  are  both  employed  to  perform  duties  and 
services  tending  to  accomplish  the  same  general  pur- 
pose, as  maintaining  and  operating  a  railroad,  operat- 
ing a  factory,  working  a  mine,  or  erecting  a  build- 
ing." Wright  v.  N.  Y.  C.  R.  Co.,  1862,  25  N.  Y. 
562. 


6  RAILWAY  COBMPLOYMENT 

Vermont.  With  respect  to  railway  servants  the 
supreme  court  of  Vermont  held  that  "all  who  are  en- 
gaged in  accomplishing  the  ultimate  purpose  in  view 
— that  is,  the  running  of  the  road — must  be  regarded 
as  engaged  in  the  same  general  business,  within  the 
meaning  of  the  rule."  Hard  v.  V.  &  C.  R.  Co.,  1860, 
32  Vt.  473- 

Illinois.  Recently  the  supreme  court  of  Illinois 
decided  that  "the  definition  of  fellow-servants  is  a 
question  of  law ;  whether  a  given  case  falls  within 
that  definition  is  a  question  of  fact."  C.  &  A.  R.  Co. 
v.  Swan,  1898,  176  111.  424. 

Wisconsin.  Still  more  recently  the  supreme  court 
of  Wisconsin,  in  applying  the  Illinois  doctrine,  held 
that  "Where  there  is  no  dispute  as  to  the  respective 
duties  of  servants  employed  by  the  same  master,  the 
question  whether  they  are  fellow-servants  is  for  the 
court."  MacCarthy  v.  Whitcomb,  1901,  no  Wis. 
113- 

Conflicting  opinion 

From  these  definitions  it  would  seem  an  easy  mat- 
ter to  determine  what  constitutes  common  employ- 
ment. The  contrary  is  true. 

Field.  Justice  Field,  in  C.  M.  &  St.  P.  Ry.  Co.  v. 
Ross,  1884,  112  U.  S.  377,  says,  "This  question  has 
caused  much  conflict  of  opinion  between  different 
courts  and  often  much  vacillation  of  opinion  in  the 
same  court." 

Pollock.  Sir  Frederick  Pollock1  points  out  that 
the  term  "commcjn  employment'  is  misleading  be- 
cause servants  not  "about  the  same  kind  of  work"  nor 
of  the  "same  relative  rank"  are  held  to  be  coem- 
ployees. 


iLaw  of  Torts,  7th  ed.,  p.  97. 


RAILWAY  COEJMPLOYMENT  7 

Classification  of  Decisions 

The  decisions  may  be  roughly  classified  along  two 
general  lines :  those  dealing  with  inequality  of  rank 
in  service, — the  vice  principal  rule,2  and  those  relat- 
ing to  differences  in  work, — the  departmental  rule. 
However,  neither  the  vice  principal  nor  the  depart- 
mental rule  have  uniform  application.  Pervading 
both  of  these  rules  runs  the  general  doctrine  of  trie 
assumption  of  risk. 

General  Definition 

The  only  approximate  definition  possible  seems  to 
be  that, — for  any  given  jurisdiction  or  any  stated 
time,  coemployment  is  that  which  the  legislature  and 
the  courts  have  defined  it  to  be  under  the  given  cir- 
cumstances.3 


2  A  strict  interpretation  of  the  vice  principal  rule  holds 
only  those  who  stand  as  substitutes  for  the  master  in  the 
performance  of  non-del  egable  duties  as  vice  principals. 

3  For  a  summary  of  conflicting  decisions  on  railway  co- 
rmployment   see    American   Digest,    Cent,    ed.,  Master  and 
Servant. 


RAILWAY  COEMPLOYMENT 


HISTORY 


The  doctrine  of  common  employment  is  of  recent 
origin.  The  great  body  of  the  common  law  did  not 
embody  this  principle  until  near  the  middle  of  the 
19th  century.1 


COMMON  LAW  LIABILITY  PRIOR  TO   1837 

It  is  a  general  principle  of  law  that  the  person  by 
whose  fault  an  injury  is  caused  is  legally  responsible. 
A  further  principle  is  that  a  person  is  liable  for  the 
acts  of  his  agents  acting  within  the  scope  of  their  au- 
thority. 

In  England  prior  to  1837,  the  common  law  princi- 
ples of  employers'  liability  comprised :  i .  The  mas- 
ter's responsibility  for  his  own  wrongful  acts.  2. 
His  liability  for  the  acts  of  his  servants  acting  within 
the  scope  of  their  employment. 

After  1837,  it  gradually  became  the  rule  in  Eng- 
land and  in  the  United  States  to  exempt  the  employer 
from  liability  for  the  injury  of  a  servant  resulting 
from  the  negligence  of  a  fellow-servant. 


i  Se?,— Pollock.  Law  of  Torts,  7th  ed.,  p.  96.     Also  Justice 
Field,  U.  S.  Supreme  Court,  112  U.  S.  386. 


RAILWAY  COEMPLOYMENT 


THE  DOCTRINE 


Early  cases 

i#j/.  The  basis  of  the-  rule  of  common  employ- 
ment is  found  in  an  Knglisli  case,  Priestley  v.  Fo\yler, 
3  M.  &  W.  i. 

The  doctrine  of  railway  coemployment  was  first 
distinctly  announced  in  America. 

1841.  Tlie    first    case    in    this    country,  Murray  v. 
S.  C.  Railroad  Co.,  i  McMulan  385,  was  decided  by 
the  supreme  court  of  South  Carolina  which  affirmed 
the  fellow-servant  rule. 

1842.  The  supreme  court  of  Massachusetts  affirmed 
the    doctrine    in    Farwell    v.    Boston  and   Worcesiei 
Railroad  Corporation,  4  Met.  49.     This  case  became 
the  basis    for    future    decisions  in    the  United  States 
and  Sir  Frederick  Pollock1  points  out  that  it  has  had 
weight  in  influencing  English  decisions  on  the  ques- 
tion. 

1850.  The  first  English  case  directly  deciding  the 
question  of  railway  coemployment  was  Hutchinson 
v.  York,  Newcastle,  and  Berwick  Ry.  Co.,  5  Exch. 
R.  343.  In  this  case  the  Court  of  Exchequer  held 
that  recovery  could  not  be  had  for  a  servant  of  the 
company,  who  was  on  duty  on  one  of  its  trains  and 
was  injured  by  a  collision  with  another  train  of  the 
same  company,  because  he  was  a  fellow-servant  with 
those  who  caused  the  injury. 

Acceptance  of  the  rule 

England.  United  States.  From  1837  on  a  long 
line  of  judicial  decisions  established  the  coemploy- 
ment rule  in  England  and  the  United  States. 


t  Law  of  Torts,  7th  ed.,  p.  96. 


Jo  RAILWAY  COEMPLOYMENT 

The  Continent.  On  the  Continent  the  doctrine  did 
not  become)  a  permanent  part  of  the  law.  Tendencies 
toward  the  development  of  the  rule  were  checked  by 
statutes  declaratory  of  employers'  liability,  and  later 
by  ,the  systems  of  industrial  insurance  more  recently 
established. 

STATUTORY     MODIFICATION    OF  THE    DOCTRINE 

Statutes  Prior  to  the  Industrial  Insurance  Systems 

Germany.1  Before  1838  the  principles  of  the  Ro- 
man law  held  in  North  Germany  and  the  employer 
was  liable  for  the  wrongful  acts  of  his  servants  only 
if  he  was  proven  negligent  in  their  selection.  In 
1838  Prussia  enacted  a  railway  law  which  made  rail- 
way companies  liable  for  injuries  to  passengers  and 
others  unless  they  could  prove  negligence  on  the  part 
of  the  injured  person  or  some  occurrence  beyond  their 
control.  In  1871  a  similar  law  was  enacted  for  the 
entire  German  Empire. 

France.  In  1841  it  was  decided  that  Art.  1384  of 
the  French  Civil  Code  made  the  employer  liable  to 
servants  for  injuries  due  to  the  negligence  of  fellow- 
servants. 

Italy.  Belgium.  Holland.  These  countries  know 
nothing  of  a  doctrine  of  common  employment. 

Norway.  In  1854  Norway  made  railroad  com- 
panies responsible  for  the  acts  of  their  officials. 

Switzerland.  Liability  for  compensation  for  death 
or  bodily  injury  to  servants  was  imposed  on  railways 
in  1875. 

Sweden.     In  1886  Sweden  matle  railway  companies 


i  Compare,  Clay,  Abstract  of  the  law  of  employers'  liabil- 
ity ...  in  Journal  of  the  Society  of  comparative 
legislation,  1897. 


RAILWAY  COBMPLOYMENT  11 

liable  to  persons  killed  or  injured  in  their  service  ex- 
cepting in  case  of  accidents  due  to  the  disobedience 
or  gross  negligence  of  the  person  injured. 

England.  In  1880,  was  passed  the  Employers' 
liability  act.  Lord  Watson  in  Smith  v.  Baker,  1891, 
A.  C.  325,  said  "The  main,  although  not  the  sole 
object  of  the  act  of  1880,  was  to  place  masters  who  do 
not,  upon  the  same  footing  of  responsibility  with  those 
who  do  personally  superintend  their  works  and  work- 
men, by  making  them  answerable  for  the  negligence 
of  those  persons  to  whom  they  intrust  the  duty  of 
superintendence  as  if  it  were  their  own.  In  effecting 
that  object  the  legislature  has  found  it  expedient  in 
many  instances  to  enact  what  were  acknowledged 
principles  of  the  common  law." 

British,  colonies.  In  Quebec  the  doctrine  of  com- 
mon employment  is  unknown.  The  Canadian  prov- 
inces and  the  Australian  colonies  have  passed  laws 
similar  to  the  English  act  of  1880. 

United  States.  Contemporary  statutes  for  the  sev- 
eral states  are  given  under  the  heading  Laws  and 
Judicial  Decisions. 

Typical  Industrial  Insurance  Systems1 

Industrial  insurance  acts  pnoviding  compensation 
for  injuries  due  to  industrial  accidents  except  those 
caused  by  serious  or  wilful  misconduct  on,  the  part  of 
the  worker  are  in  force  in  the  following  countries: 

Germany.  The  compulsory  insurance  law  of  1884, 
as  amended  in  1900,  provides  free  medical  treatment 
and  a  pension  of  662/3%  of  wage  for  either  tem- 
porary or  permanent  incapacity  and  in  case  of  fatal 


1  See,  Workmen's  insurance  in  Germany  and  abroad,  in 
Guide  to  the  workmen's  insurance  of  the  German  Empire, 
Berlin,  1904. 


12  RAILWAY  COEMPLOYMENT 

accidents  gives  a  pension  to  the  family  up  to  60% 
of  the  annual  wage.  The  annual  costs  of  the  system 
are  assessed  on  individual  employers,  according  to 
wages  and  risks,  by  mutual  associations  of  employers 
organized  by  industries,  thus  securing  collective  re- 
sponsibility. The  workmen  contribute  about  &%  to 
the  accident  insurance  fund.  The  whole  system  is 
administered  by  the  state. 

Austria.  The  law  of  1887  and  1894  differs  espec- 
ially from  the  German  in  having  territorial  associa- 
"ions  of  employers  and  employees :  the  employers  pay 
90%,  the  workmen  10%  of  the  costs  of  accident  in- 
surance. 

Nonvay.  Compulsory  insurance  was  established  in 
1894.  Employers  pay  premiums  according  to  wages 
and  risk.  The  state  pays  all  expenses  of  central  ad- 
ministrative office  and  one-half  of  expenses  of  local 
branches ;  also  meets  deficits. 

England.  The  act  of  1897  applies  to  accidents  in 
the  more  dangerous  occupations.  Insurance  is  vol 
untary,  and  the  costs  are  paid  by  the  individual  em- 
ployer. Benefits  are  paid  up  to  50%  of  the  wages 
in  case  of  total  disability  and  in  case  of  death  sur- 
vivors receive  three  times  the  amount  of  the  anuual 
wage.  Payment  is  guaranteed  by  a  prior  claim  upon 
amounts  due  the  employer  from  accident  insurance 
companies. 

Denmark.  Established  voluntary  insurance  in 
1898.  The  costs  are  paid  by  individual  employers, 
and  compensation  may  be  guaranteed  either  through 
state  or  private  companies. 

France.  The  French  system  of  1898  is  voluntary 
except  for  seamen.  The  costs  are  paid  by  employers 
and  payment  is  guaranteed  either  through  state  or 
private  insurance  companies. 


RAILWAY  COEMPLOYMENT  13 

Italy.  The  law  of  1898  is  compulsory.  Otherwise 
it  is  similar  to  the  French  plan. 

Switzerland,  Compulsory  accident  insurance  was 
established  in  1899;  75%  of  premiums  are  paid  by 
employers,  25%  by  employees.  A  state  subsidy  pro- 
vides about  one-fifth  of  the  necessary  funds. 


14  RAILWAY  COEMPLOYMENT 


LAWS   AND    JUDICIAL    DECISIONS 


The  United  States  is  the  only  country  in  which  the 
doctrine  of  common  employment  continues  to  have 
great  practical  significance. 

The  relation  of  master  and  servant  has  passed  from 
status  to  contract.  The  contract  relation  has  been 
regulated  first  by  common  law,  second  by  statutory 
provisions.  The  doctrine  of  common  employment 
has  been  subject  to  these  two  forms  of  modification 
and  the  following  pages  give  the  salient  points  of 
laws  and  judicial  decisions  in  the  United  States. 

The  fact  that  many  states  have  deemed  it  necessary 
to  enact  general  statutes  giving  right  of  action  for  in- 
juries causing  death,  without  providing  for  injuries 
not  proving  fatal,  is  explained  by  reason  of  the  com- 
mon law  right  which  provided  damages  in  case!  of  in- 
juries, from  time  immemorial  while  an  action  for 
damages  on  account  of  the  homicide,  of  a  human  be- 
ing could  not  be  maintained  prior  to  Lord  Campbell's 
Act  in  1846.  (9  and  10,  Viet.  c.  93.) 

United  States1 

The  decisions  of  the  federal  courts  on  the  doctrine 
of  common  employment  have  not  been  uniformly  con- 
sistent. 

Compare:  C.  M.  &  St.  P.  R.  Co.  v.  Ross,  1884,  112  U.  S. 
377;  and  N.  E.  R.  Co.  v.  Conroy,  1899,  175  U.  S.  323. 


iWith  the  exception  of  citations  taken  from  advance 
sheets,  all  cases  cited  are  given  from  the  reports  of  the 
court  deciding  the  question. 


RAILWAY  COBMPLOYMBNT  15 

In  1892  in  B.  &  O.  R.  Co.  v.  Baugh,  149  U.  S. 
368,  the  supreme  court  declared  that  the  question  as 
to  who  are  fellow-servants  was  not  a  question  of  local 
law  but  rather  one  of  general  law,  and  that  in  the 
absence  of  statutory  regulations  by  the  state  the  fed- 
eral courts  were  not  required  to  follow  the  decisions 
of  the  state  courts. 

In  deciding  questions  arising  under  the  employers' 
liability  acts  of  the  several  states,  such  statutory  pro- 
visions have  generally  been  accepted  as  establishing 
the  rule  for  the  federal  courts  sitting  within  the  state. 
However,  diversity  of  interpretation  has  resulted  in 
frequent  disagreement  between  state  and  federal  de- 
cisions under  the  same  law. 

Alabama.  Civ.  Code,  1897,  c.  43,  sec.  1749.  Makes 
employers  liable  for  injury  caused  by  the  negligence 
of  any  superintendent ;  or  by  one  in  authority ;  or  in 
obedience  to  rules  or  instructions ;  or  by  the  negli  - 
gence  of  any  person  in  charge  or  control  of  any  rail- 
road signal,  engine,  switch,  car,  or  train,  upon  a  rail- 
wav,  or  of  any  part  of  the  track. 

Liability  can  not  be  avoided  by  contract.  A.  G.  S.  R.  Co. 
v.  Carroll,  1892,  97  Ala.  126. 

Alaska. 

In  Gihson  v.  C.  P.  Nav.  Co.,  1902,  1  Alaska  407,  the  vice 
principal  rule  was  applied. 

Arizona.  Civ.  Code,  1901,  sec.  2767.  Corpora- 
tions made  liable  for  injury  by  fellow  servants:  pre- 
vious notice  of  negligence  to  be  given. 

Arkansas.  Dig.  1894,  c.  130.  Railroad  companies 
made  liable  for  acts  of  vice  principals. 

Authority  must  be  actually  entrusted  to  vice  principal. 
Hunter  v.  K.  C.  &  M.  Ry.  &  B.  Co.,  1898,  29  C.  C.  A.  (U  S.) 
206. 

California.     Civ.  Code,  1885,  sec.  1970,  as  amended 


16  RAILWAY  CO-EMPLOYMENT 

by  Acts,  1903,  c.  220.     Relates  to  non  delegable  duties 
of  employer. 

In  McKune  v.  C.  S.  R.  Co.,  1885,  66  Cal.  302.  A  train 
dispatcher  was  held  not  a  coemploy?e  with  a  track  laborer. 

Colorado.  Acts,  1901,  c.  67.  Employers  made 
liable  for  injuries  due  to  acts  of  fellow-servants. 

Connecticut.  Gfcn.  St.,  1902,  sec.  4702.  Default 
of  the  vice  principal  shall  be  the  default  of  the  master. 

Dclaimre.  Rev.  Code,  1852,  ed.  1893,  c.  105.  A 
general  statute  giving  right  of  action  for  injuries. 

A  fireman  of  on?  train  and  the  brakeman  of  another  are 
fellow-servants.  Wheatley  v.  P.  W.  &  B.  R.  Co.,  1894,  1 
Marv.  (Del.)  305. 

Florida.  Rev.  St.,  1891,  c.  4071,  sec.  3.  Railroad 
companies  made  liable  for  negligence  of  fellow - 
servants.  Contracting  out,  illegal. 

Georgia.  Civ.  Code,  1895,  sec.  2323.  Liability 
of  railroad  companies  for  injuries  to  employees. 

If  an  employe?  is  without  fault  the  railroad  is  liable  for 
the  negligence  of  a  coemployee.  whether  the  injury  is  con- 
n?cted  with  the  running  of  trains  or  not.  Ga.  R.  v.  Ivey, 
1884,  73  Ga.  499. 

Idaho.  Codes,  1901,  Civ.  Pro.  c.  126.  A  general 
statute  giving  right  of  action  for  injuries  causing 
death. 

A  carpenter  employed  by  a  railroad  is  not  a  fellow  serv- 
ant of  a  train  dispatcher.  Palmer  v.  U.  &  N.  R.  Co.,  1887, 
%  Id.  290. 

Illinois.  Ann.  St.,  1896,  c.  70.  A  general  statute- 
giving  right  of  action  for  injuries  causing  death. 

The  duty  of  a  master  to  warn  a  servant  of  danger  can- 
not be  delegated  to  a  fellow-sarvant  so  as  to  absolve  the 
master  from  liability  for  injury  resulting  from  failure  to 
communicate  the  warning.  (Judgment,  1903,  109  111.  App. 
494,  reversed.)  Rogers  v.  C.  C.  C.  &  St.  L.  Ry.  Co.,  1904, 
211  111.  126. 

Indiana.  Ann.  St.,  1901  \  sec.  7083.  Railroad  com- 
panies are  made  liable  to  employees  for  injury  caused 


17 

by  the  negligence  of  any  person  to  whose  order  or 
direction  the  injured  employee  was  bound  to  con- 
form; or  by  obedience  to  rules;  or  by  the  negligence 
of  any  person  in  charge  of  any  signal,  telegraph  office, 
switch  yard,  shop,  roundhouse,  locomotive  engine  or 
train  upon  a  railway;  or  where  such  injury  was  caused 
by  the  negligence  of  any  coemployee,  engaged  in  the 
same  common  service  in  any  of  the  several  depart- 
ments, at  the  time,  in  that  behalf,  having  authority  to 
direct.  Contracting  out,  illegal. 

No  constitutional  objection  to  this  act.  Stats  v.  Darling- 
ton, 1899,  153  Ind.  1. 

Iowa.  Code,  1897,  sec.  2071.  Gives  railway  em- 
ployees a  right  of  action  for  injuries  arising  from  the 
negligence  of  coemployees. 

This  statute  is  not  unconstitutional,  being  applicable  to 
all  persons  or  corporations  engaged  in  a  peculiar  business. 
McAunich  v.  M.  &  M.  R.  Co.,  1866,  20  la.  338. 

To  hold  that  the  injury  must  have  been  caused  by  the  ac- 
tual movement  of  the  cars,  engines,  or  machinery,  to  come 
within  the  protection  of  th?  statute  would  b^  giving  too 
narrow  a  construction  to  the  words  ''in  any  manner  con- 
nected with  the  use  and  operation  of  any  railway."  Ake- 
son  v.  C.  B.  &  Q.  Ry.  Co.,  1898,  106  la.  54. 

Kansas.  Laws,  1905,  c.  341.  Makes  railroads 
liable  for  all  injuries  to  employees  in  consequence  of 
any  negligence  of  any  of  their  servants.  This  statute 
gives  to  employees  of  railroads  the  same  right  to  re- 
cover for  injuries  that  a  non-employee  would  have 
under  the  common  law. 

Kentucky.  St.,  1894,  c.  i.  A  general  statute,  giv- 
ing right  of  action  for  injuries  causing  death. 

Louisiana.  Rev.  Civ.  Code,  ed.  1887,  art.  2320.  A 
general  provision  making  employers  responsible  for 
damage  due  to  their  servants. 

Maine.  Rev.  St.,  1903,  c.  89.  A  general  statute, 
right  of  action  for  injuries  causing  death. 


18  RAILWAY  COEMPLOYMENT 

Maryland.  Code,  1903,  art.  67.  A  general  statute 
giving  right  of  action  for  injuries  causing  death. 

Art.  23.  Provided  for  a  cooperative  insurance 
fund. 

Declared  unconstitutional,  1904,  Court  of  Common  Pleas 
of  Baltimore. 

Massachusetts.  Rev.  Laws,  1902,  c.  106.  Makes 
employers  liable  for  injury  to  employees  caused  by 
negligence  of  superintendents ;  or  by  persons  in 
charge  or  control  of  any  signal,  switch,  locomotive 
engine,  or  train  upon  a  railroad. 

Michigan.  Comp.  Laws,  1897,  sec.  6308.  Makes 
railroad  companies  liable  for  injuries  causing  death. 

A  railroad  company  is  not  held  to  the  same  accountabil- 
ity toward  an  employee  as  toward  a  passenger.  Batterson 
v.  C.  &  G.  T.  Ry.  Co.,  1884,  53  Mich.  125. 

But  it  is  due  employees  to  protect  them  from  unneces- 
sary and  unusual  dangers.  Ragon  v.  T.  A.  A.  &  N.  M.  Ry. 
Co.,  1892,  91  Mich.  379. 

Minnesota.  Gen.  St.,  1894,  sec.  2701.  Makes 
railroad  corporations  liable  for  damages  to  servants 
due  to  the  negligence  of  other  servants;  does  not  ap- 
ply to  construction  of  new  road. 

Acts,  1895.  c.  173.     A  common  law  enactment. 

Acts,  1895,  c.  324,  sec.  i.  In  any  action,  where 
damages  are  awarded  for  injury  by  coemployee,  the 
court,  upon  request  of  either  party,  shall  direct  the 
jury  to  name  negligent  fellow-servant. 

The  negligence  of  a  fellow-servant  constitutes  no  defense 
in  an  action  by  an  employ ?e  to  recover  damages.  N.  P.  R. 
Co.  v.  Behling,  1893,  12  C.  C.  A.  (U.  S.)  662. 

The  decision  of  the  supreme  court  of  Minnesota  that  the 
fellow-servant  law  of  that  state  applies  to  a  mining  cor- 
poration which  owns  a  short  line  of  road  to  mine  its  ore  is 
not  so  clearly  beyond  the  limits  of  the  police  power  of  the 
state  that  it  must  be  declared  a  violation  of  the  constitu- 
tion of  the  U.  S.  Kibbe  v.  S.  Iron  Min.  Co.,  1905,  TU.  S.  C. 
C.  A.,  Minn.)  136  F.  147. 

Mississippi.     Const.,  1890,  art.  7,  sec.  193.     Makes 


RAILWAY  CGEMPLOYMENT  19 

railroad  companies  liable  for  injuries  to  employees 
caused  by  the  negligence  of  superiors;  or  by  fellow- 
servants  engaged  in  another  department  of  labor,  or 
on  another  train  of  cars,  or  about  a  different  piece 
of  work.  Contracts  waiving  benefits,  void. 

Missouri.  Rev.  St.,  1899,  sec.  2873.  Railroad  cor- 
porations made  liable  for  damages  to  servants  en- 
gaged in  the  work  of  operating  railroads  by  reason 
of  the  negligence  of  other  employees. 

A  railroad  section  hand  is  within  the  protection  of  this 
act.  Overton  v.  C.  R.  I.  &  P.  Ry.  Co.,  1905,  (Mo.  App.)  85 
S.  W.  503. 

Laws,  19/35,  sec.  2864.  Damages  for  injuries  re- 
sulting in  death  are  set  at  not  less  than  two  nor  more 
than  ten  thousand  dollars. 

Laws,  1905,  sec.  28763.  ''Railroads"  defined  to  in- 
clude street  and  other  railways. 

Montana.  Acts,  1905,  c.  i.  Railroad  companies 
are  made  liable  for  all  damages  to  employees  due  to 
neglect,  or  mismanagement,  or  wilful  wrong,  of  other 
employees  in  any  manner  connected  with  the  use  and 
operation  of  any  railroad  on  or  about  which  they  shall 
be  employed.  Contracting  out  illegal.  Right  of  ac- 
tion survives. 

Nebraska.  Comp.  St.,  1901,  c.  21.  Gives  general 
right  of  action  for  injuries  causing  death. 

Track  repairer  and  fireman,  not  fellow-servants.  U.  P. 
Ry.  Co.  v.  Erickson,  1894,  41  Neb.  1. 

Foreman  of  a  section  crew  and  an  engineer,  not  fellow- 
servants.  O.  &  R.  V.  Ry.  Co.  v.  Krayenbuhl,  1896,  48  Neb. 
553. 

Nevada.  Comp.  Laws,  1900,  sec.  3983.  A  gen- 
eral statute,  giving  right  of  action  for  injuries  causing 
death. 

Neu<  Hampshire.  Pub.  St.,  1891,  c.  191.  Gives 
right  of  action  for  injuries  causing!  death. 

A  train  dispatcher,  not  a  fellow-servant  of  a  brakeman. 
Wallace  v.  B.  &  M.  R.,  1904,  72  N.  H.  504. 


20  RAILWAY  COEMPLOYMENT 

New  Jersey.  Gen.  St.,  1895,  p.  1188,  sec.  10.  A 
general  statute,  for  injuries  causing  death. 

A  master  cannot  claim  immunity  upon  ths  ground  that 
he  exercised  due  care  in  selecting  mechanics  but  assumes 
the  burthen  of  seeing  that  they  actually  exercise  reason- 
able care  and  skill.  Colly3T  v.  Pa.  R.  Co.,  1886,  49  N.  J. 
L.  59. 

New  Mexico.  Comp.  Laws,  1897,  sec.  3216.  Rail- 
road companies  made  liable  for  injuries  to  employees 
due  to  lack  of  care  in  selecting  or  in  overworking 
servants. 

Nciv  York.  Laws,  1902,  c.  600.  Imposes  liability 
on  employers  for  injuries  to  employees  caused  by  the 
negligence  of  superintendents  or  of  any  person  act- 
ing as  such  with  the  authority  or  consent  of  the  em- 
ployer. 

The  fact  that  there  was  a  general  superintendent  who 
did  not  take  immediate  charge  of  the  details  of  the  work, 
over  such  foreman,  did  not  relieve  the  master  from  liabil- 
ity for  the  latter's  acts.  McBride  v.  N.  Y.  T.  Co.,  1905,  92 
N.  Y.  S.  282. 

All  of  th?  employees  of  a  railway  company  engaged  in 
operating  either  of  two  colliding  trains  were  fellow-serv- 
ants of  a  fireman  on  one  of  the  trains.  Rosney  v.  E.  R. 
.Co.,  1905,  (U.  S.  C.  C.  A.)  135  Fed.  311. 

North  Carolina.  Acts,  1897,  c.  56.  Makes  railroad 
companies  liable  for  acts  of  fellow-servants.  Con- 
tracts waiving  benefit  of  law,  void. 

Held  constitutional.  Hancock  v.  N.  &  W.  Ry.  Co.,  1899, 
124  N.  C.  222. 

North  Dakota.  Acts,  1903,  c.  131.  Railroad  com- 
panies made  liable  for  negligence  of  coemployces. 
Contracting  out,  illegal. 

Ohio.  Ann.  St.,  3rd.  ed.,  sec.  3365-22.  Persons 
actually  having  the  power  to  direct  and  control,  to  be 
lueld  not  fellow-servants  but  superiors;  also  persons 
having  charge  in  any  separate  department. 

An  engineer  on  ona  train  is  in  a  separate  department 


21 

from  a  brakemjan  on  another  train.     Railroad  Co.  v.  Mar- 
grat,  1894,  51  O.  S.  R.  130. 

Oklahoma. 

Decisions  or  the  supreme  court  of  U.  S.  treated  as  con- 
trolling upon  the  supreme  court  of  Oklahoma.  Cf.  Report 
for  1904,  14  Okla.  422. 

Oregon.  Acts,  1903,  p.  20,  sec.  I.  Makes  railroad 
companies  liable  lor  injuries  to  employees  when 
caused  by  any  superior;  or  by  any  person  having  the 
right  to  direct  the  services  either  of  the  servant  in- 
jured or  of  the  negligent  coemployee;  or  by  any  co- 
employee  in  another  train  of  cars ;  or  by  any  one  hav- 
ing charge  of  any  switch,  signal  point,  or  locomotive ; 
or  by  any  one  charged  with  dispatching  trains,  or 
transmitting  orders. 

Pennsylvania.  Digest,  1895,  p.  1604,  sec.  6.  Pro- 
vides that  workmen  who  are  not  employees  but  are 
lawfully  engaged  about  the  premises  of  a  railroad 
company  shall  have  only  such  right  of  action  for  in- 
juries as  if  they  were  employees. 

Under  this  act  any  ona  not  a  passenger,  who  enters  the 
depot  of  a  railroad  company  takes  the  risk  upon  himself. 
Gerard,  Adm'r,  v.  Pa.  R.  Co.,  1878,  12  Phil.  R.  394. 

Porto  Rico.  Rev.  St.,  1902.  Employers  made 
liable  to  'employees  for  injuries  due  to  the  negligence 
of  superintendents ;  or  to  any  person  in  charge  of  any- 
signal  switch,  locomotive  engine,  car,  or  train  in 
motion. 

Rhode  Island.  Gen.  Laws,  1896,  c.  233,  sec.  14. 
A  general  statute  giving  right  of  action  for  injuries 
causing  death. 

South  Carolina.  Const,  art.  9,  sec.  15.  Makes 
railroad  companies  liable  for  injuries  to  employees 
due  to  the  negligence  of  a  superior ;  or  of  a  fellow- 
servant  in  another  department. 

Acts,  1903.     No.  48.     Benefit  from  railroad  relief 


22  RAILWAY  COEMPLOYMENT 

departments  not  to  bar  an  action  for  damages  for  in- 
jury caused  by  the  negligence  of  the  company  or  of 
its  servants. 

South  Dakota.  Civ.  Code,  1903,  sec.  1449  and 
1450.  An  enactment  of  the  common  law. 

Tennessee.  Code,  1884,  part  2,  title  3.  A  general 
statute  giving  right  of  action  for  injuries  causing 
death. 

A  conductor  of  a  railway  train  acting  in  his  official  capa- 
city is  a  vice  principal.  A.  G.  S.  R.  Co.  v.  Baldwin,  1904, 
113  Tenn.  409. 

Texas.  Acts,  1897,  c.  6.  Railroad  companies 
made  liable  for  acts  of  fellow-servants  causing  injury 
to  any  employee  while  engaged  in  the  work  of  op- 
crating  cars,  locomotives,  or  trains. 

Hand  cars  are  within  the  meaning  of  this  section.  Long 
v.  C.  R.  I.  &  T.  Ry.  Co.,  1900,  94  Tex.  53. 

Includes  a  logging  railroad  operated  by  a  corporation 
soldy  for  the  purpose  of  carrying  its  own  lumber.  Lod- 
wick  L.  Co.  v.  Taylor,  1905,  (Tex.  Civ.  App.)  87  S.  W.  358. 

Utah.  Rev.  St.,  1898,  t.  36.  The  vice  principal 
rule  and  the  departmental  rule  applied. 

A  railroad  yardman,  not  a  fellow-servant  with  a  fore- 
man. Armstrong  v.  O.  S.  L.  &  U.  N.  Ry.  Co.,  1893,  8  U.  420. 

Vermont. 

Conflicting  decisions.  See  Sawyer  v.  R,  &  B.  R.  Co.,  1855, 
27  Vt.  370.  Davis  v.  C.  Vt.  R.  Co.,  1882,  55  Vt.  84. 

Virginia.  Const.,  1902,  art.  12,  sec.  162.  Makes 
railroad  companies  liable  to  employees  for  negligence 
of  servants  as  follows :  employees  engaged  in  the 
construction,  repair,  or  maintenance  of  its  track;  or 
in  any  work  in  or  upon  a  car  or  engine  upon  a  track ; 
or  in  the  physical  operation  of  a  train,  car,  engine,  or 
switch,  or  in  any  service  requiring  his  presence  upon 
the  same;  or  in  dispatching  trains,  or  transmitting 
orders ;  or  for  the  negligence  of  superintendents ;  or 
of  coemployees  in  another  department  of  labor. 


Contracts  waiving  rights,  void.  Provisions  not  re- 
strictive. 

See  also  Acts,  1901-2,  c.  322. 

Washington.  Acts,  1899,  c.  35.  Liability  of  rail- 
roads for  safety  appliances. 

The  negligence  of  such  servants  was  the  negligence  of 
the  master  in  making  dangerous  the  place  furnished  the 
plaintiff  in  which  to  work.  Mullin  v.  N.  P.  Ry.  Co.,  1905, 
80  P.  814. 

West  Virginia.     Code,  1899,  c.  103.     Gives  general 

right  of  action  for  injuries  causing  death. 

Trainmen  and  yardmen  are  fellow-servants.  Beurhing's 
Adm'r.  v.  C.  &  O.  Ry.  Co.,  1892,  37  W.  Va.  502. 

Wisconsin.  Rev.  St.,  1898,  sec.  1816,  as  amended 
by  Laws,  1903,  c.  448.  Abrogates  the  fellow-servant 
doctrine  with  respect  to  railway  employees  who  sus- 
tain injuries  due  to  a  "risk  or  hazard  peculiar  to  the 
operation  of  railroads."  The  clause  "peculiar  to  the 
operation  thereof"  has  been  rigidly  construed  so  that 
the  operation  of  the  law  is  limited  to  a  narrow  scope. 

Wyoming.  Rev.  St.,  1899,  sec.  2522.  Contracts 
of  employees  waiving  right  to  damages  for  injuries 
due  to  the  negligence  of  other  employees  are  void. 


24  RAILWAY  COBMPLOYMENT 


JUDICIAL  CRITICISMS 


The  question  of  common  employment  has  given  rise 
to  a  variety  of  judicial  criticism,  some  severe  in  de- 
nunciation, some  commendatory  of  the  doctrine. 

Upholding  the  Rule 

Massachusetts.  Chief  Justice  Shaw  of  the  supremo 
court  of  Massachusetts  in  delivering  the  opinion  in 
the  first  important  case  on  the  subject  of  railway  co- 
employment,  said  "the  general  rule,  resulting  from 
considerations  as  well  of  justice  as  of  policy,  is,  that 
he  who  engages  in  the  employment  of  another  for 
the  performance  of  specific  duties  and  services,  for 
compensation,  takes  upon  himself  the  natural  and 
ordinary  risks  and  jjerils  incident  to  the  performance 
of  such  services,  and  in  legal  presumption,  the  com- 
pensation is  adjusted  accordingly.  And  we  are  not 
aware  of  any  principle  which  should  except  the  perils 
arising  from  the  carelessness  and  negligence  of  those 
who  are  in  the  same  employment.  These  are  perils 
which  the  servant,  is  as  likely  to  know,  and  against 
which  he  can  as  effectually  guard,  as  the  master. 
They  are  perils  incident  to  the  service,  and  which  can 
be  as  distinctly  foreseen  and  provided  for  in  the  rate 
of  compensation  as  any  others.  To  say  that  the 
master  shall  be  responsible  because  the  damage  is 
caused  by  his  agents,  is  assuming  the  very  point  which 


RAILWAY  COEMPLOYMENT  25 

remains  to  be  proved."  Farwell  v.  Boston  &  Worces- 
ter R.  Corporation,  1842,  4  Met.  49. 

South  Carolina.  In  the  case,  Murray  v.  S.  C.  R. 
Co.,  1841,  i  McMullan  (S.  C.)  385,  the  first  case  on 
railway  coemployment  to  be  tried  in  this  country, 
the  court  said  "No  case  like  the  present  has  been 
found  nor  is  there  any  precedent  suited  to  the  plaint- 
iff's case  ...  It  seems  to  me  it  is  on  the  part 
of  the  several  agents  a  joint  undertaking  where  each 
one  stipulates  for  the  performance  of  his  several  part. 
They  are  not  liable  to  the  company  for  the  conduct 
of  each  other,  nor  is  the  company  liable  to  one  for 
the  misconduct  of  another  and  as  a  general  rule  I 
would  say  that  where  there  was  no  fault  in  the  owner 
he  would  be  liable  only  for  wages  to  his  servants." 

United  States  Supreme  Court.  In  the  case  of  the 
Baltimore  &  O.  R.  Co.  v.  Baugh,  1893,  149  U.  S. 
.^68,  Justice  Brewer  of  the  supreme  court  of  the 
United  Sfates,  said  "But  passing  beyond  the  matte? 
of  authorities  the  question  is  essentially  one  of  general 
law.  It  does  not  depend  upon  any  statute ;  it  does 
no  sprin/f  from  any  local  usage  or  custom ;  there  is 
in  it  no  rule  of  property  but  it  rests  upon  those  con- 
siderations of  right  and  justice  which  have  been 
gathered  into  the  great  body  of  the  rules  and  prin- 
ciples known  as  the  common  law.  There  is  no  ques- 
tion as  to  the  power  of  the  states  to  legislate  and 
change  the  rules  of  common  law  in  this  respect  as  in 
others  but  in  the  absence  of  such  legislation  the  ques- 
tion is  one  determinable  only  by  the  principles  of  that 
law." 

Adverse  Criticism 

Scotch  case.  As  an  illustration  of  a  contrary  posi- 
tion taken  in  an  early  Scotch  case  may  be  cited  Dick- 


26  RAILWAY  COBMPLOYMENT 

son  v.  Ranken,  1852,  14  Sc.  Sess.  Cas.  2d  series  420. 
In  referring  to  the  contention  of  counsel  that  the 
doctrine  ought  to  be  adopted  on  account  of  its  own 
inherent  justice,  the  court  said,  "This  last  recom- 
mendation fails  with  me,  because  I  think  that  the  jus- 
tice of  the  thing  is  exactly  in  the  opposite  direction. 
I  have  rarely  come  upon  any  principle  that  seems  less 
reconcilable  to  legal  reason.  I  can  conceive  some 
reasonings  for  exempting  the  employer  from  liability 
altogether,  but  not  one  for  exempting  him  only  when 
those  who  act  for  him  injure  one  of  themselves.  It 
rather  seems  to  me  that  these  are  the  very  persons 
who  have  the  strongest  claim  upon  him  for  repara- 
tion, because  they  incur  danger  on  his  account,  and 
certainly  are  not  understood,  by  our  law,  to  come 
under  any  engagement  to  take  these  risks  on  them- 
selves." 

Ohio.  In  the  case,  Little  Miami  R.  Co.  v.  Stevens, 
1851,  20  Ohio  432,  the  court  observed  that'the  "em- 
ployer would  be  more  likely  to  be  careless  of  the  per- 
sons of  tnose  in  his  employ,  since  his  own  safety  is 
not  endangered  by  any  accident,  when  he  would  un- 
derstand that  he  was  not  pecuniarily  liable  for  tnc 
careless  conduct  of  his  agents." 

United  States  Supreme  Court.  In  holding  that  a 
corporation  should  be  held  responsible  for  the  acts  of 
a  servant  exercising  control  and  management,  Justice 
Field  said  "He  is  in  fact,  and  should  be  treated  as, 
the  personal  representative  of  the  corporation,  for 
whose  negligence  it  is  responsible  to  subordinate  serv- 
ants. This  view  of  his  relation  to  the  corporation 
seems  to  us  a  reasonable  and  just  one,  and  it  will  in- 
sure more  care  in  the  selection  of  such  agents,  and 
thus  give  greater  security  to  the  servants  engaged 
under  him  in  an  employment  requiring  the  utmost 


RAILWAY  COEMPLOYMENT  27 

vigilance  on  their  part,  and  prompt  and  unhesitating 
obedience  to  his  orders."  C.  M.  &  St.  P.  Ry.  Co.  v. 
Ross,  1884,  112  U.  S.  377. 

Connecticut.  In  the  case  of  Ziegler  v.  Danbury  & 
N.  R.  Co.,  1885,  52  Conn.  543,  the  court  stated,  "The 
defense  of  common  employment  has  little  of  reason 
or  principle  to  support  it  and  the  tendency  in  nearly 
all  jurisdictions  is  to  limit  rather  than  enlarge  its 
range.  It  must  be  conceded  that  it  cannot  rest  on 
reasons  drawn  from  considerations  of  justice  or  pub- 
lic policy." 

Missouri.  The  effect  of  changing  economic  condi- 
tions was  dwelt  upon  by  the  court  in  the  case,  Parker 
v.  Hannibal  &  J.  R.  Co.,  1891,  109  Mo.  362,  as  fol- 
lows :  "In  the  progress  of  society,  and  the  general 
substitution  of  ideal  and  invisible  masters  and  em- 
ployers for  the  actual  and  visible  ones  of  former 
times,  in  the  forms  of  corporations  engaged  in  varied, 
detached,  and  wide-spread  operations  ...  it 
has  been  seen  and  felt  that  the  universal  application 
of  the  rule  (the  rule  in  regard  to  fellow-service) 
often  resulted  in  hardship  and  injustice.  Accord- 
ingly, the  tendency  of  the  more  modern  authorities 
appears  to  be  in  the  direction  of  such  a  modification 
and  limitation  of  the  rule  as  shall  eventually  devolve 
upon  the  employer,  under  these  circumstances,  a  due 
and  just  share  of  the  responsibilitv  for  the  lives  and 
limbs  of  the  persons  in  its  employ." 


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